EEQ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 230
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 230
File number: MLG 2410 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 24 March 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – significant delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 36, 425, 425A, 426A, 426B, 441A, 441C & 477
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 111 Date of hearing: 9 March 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Moxey Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2410 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEQ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 14 & 42-46). He first arrived in Australia in March 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 51). That visa ultimately lapsed in June 2016 and the applicant became an unlawful non-citizen (CB 51).
On 22 February 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-41). With that application, the applicant provided copies of various identity documents (CB 42-46).
On 27 June 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 51-66). Having considered the limited evidence before it and relevant country information, the delegate found that the applicant personally was not of adverse interest to the Malaysian authorities (CB 60). On that basis, the delegate was not satisfied that the applicant met ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”) (CB 60-61).
On 8 July 2017, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 67-69). In that review application, the applicant provided a postal address, an email address and a mobile phone number under the “[c]orrespondence details” section of the application form (CB 68).
On 18 December 2017, the Tribunal invited the applicant (via email) to attend a hearing before it on 7 February 2018 at 9.30am (VIC time) (CB 73-75).
On 31 January 2018, the Tribunal sent an SMS message to the applicant (at the mobile number provided by the applicant in his review application) reminding him of the Tribunal hearing. That message read as follows (CB 76):
SMS HEARING REMINDER
SMS hearing reminder sent to the PRA’s mobile number ([omitted]) on 31/01/2018 11:00:23 AM.
The message sent was:
Reminder - Your AAT hearing is on 07/02/18. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
The delivery of that SMS hearing reminder failed (CB 76).
On 6 February 2018, the Tribunal sent a further SMS reminder message to the applicant (at the mobile number provided by the applicant in his review application) in similar terms to that of the first SMS message (outlined above) (CB 76).
The delivery of that second SMS hearing reminder message also failed (CB 76).
The applicant did not attend the hearing scheduled on 7 February 2018 (CB 78-80).
On 7 February 2018, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 83-84).
On 8 February 2018, the applicant was notified, by letter sent via email, of the Non-Appearance Decision and his right to apply for reinstatement (CB 81-82). That letter stated (CB 82):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 22 February 2018. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The applicant did not seek reinstatement.
On 23 February 2018, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”) (CB 87-88). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.
On 27 February 2018, the Tribunal received a submission from the applicant dated 23 February 2018 (CB 89 & 91). The Tribunal determined that, as it had already “made its decision” in the matter, it had no power to take any further action on the review. The Tribunal notified the applicant accordingly (CB 90-91).
On 6 March 2018, the applicant again applied to the Tribunal for review of the delegate’s decision (see Affidavit of Tareena Martin affirmed and filed on 23 February 2023 (the “Martin Affidavit”), p 16).
On 26 March 2018, the Tribunal determined that it had no jurisdiction in the matter as the Tribunal (differently constituted) had already determined the matter on 23 February 2018 (Martin Affidavit, p 15-16).
On 29 April 2018, the applicant applied to the Tribunal (for a third time) for review of the delegate’s decision (Martin Affidavit, p 20).
On 22 May 2018, the Tribunal once again determined that it had no jurisdiction in the matter as the Tribunal (differently constituted) had already determined the matter on 23 February 2018 (Martin Affidavit, p 19-20).
On 27 June 2018, the applicant provided further correspondence to the Tribunal. The Tribunal determined that the correspondence appeared “to be seeking review of the same decision made by the delegate on 27 June 2017” and noted that the applicant had first lodged an application for review in that regard on 8 July 2017. Noting that the applicant appeared to have “made 4 applications for the review of the same visa refusal decision” the Tribunal determined that it would not consider the applicant’s application any further. The Tribunal notified the applicant accordingly on 2 July 2018 (Martin Affidavit, p 22).
On 14 August 2018, the applicant applied to this Court for judicial review of the Tribunal’s decisions. Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act.
Accordingly, the applicant requires an extension of time to pursue the substantive proceeding in this Court.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court concludes that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for an extension of time filed by the applicant on 14 August 2018, the affidavit of the applicant affirmed on 13 August 2018 and filed on 14 August 2018 (taken as read and in evidence), a court book numbering 91 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 23 February 2023, the Martin Affidavit (taken as read and in evidence), the affidavit of service of Tareena Martin affirmed and filed on 6 March 2023 (also taken as read and in evidence) and correspondence received from the applicant immediately prior to the hearing (marked as Exhibit 2 and discussed further below).
The applicant appeared before this Court without legal representation. He was assisted by an interpreter in the Bahasa Melayu language.
The Court notes that, while the application filed by the applicant only appeared to seek review of the Confirmation Decision, the applicant’s supporting affidavit annexed both the Tribunal’s Non-Appearance and Confirmation Decisions. The Court considers that the applicant seeks review of both decisions. No objections were raised in that regard. On that basis, the Court will address each of the Tribunal’s decisions for the purpose of determining whether an extension of time ought to be granted.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions.
In this matter, the Tribunal’s Non-Appearance and Confirmation Decisions are dated 7 February 2018 and 23 February 2018 respectively. The dates by which the applicant was required to file his application in this Court were 14 March 2018 (in relation to the Non-Appearance Decision) and 30 March 2018 (in relation to the Confirmation Decision). Unfortunately, the applicant did not file his substantive application until 14 August 2018. Hence, the delays here are 153 days in relation to the Non-Appearance Decision and 137 days in relation to the Confirmation Decision.
The Court explained to the applicant that, despite the late filing of the substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file a substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided “grounds” in his affidavit explaining why he believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicant appeared without any legal assistance, the Court explained to him that while the factors which may be considered in this regard are not limited, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the applicant to address each of the factors outlined above and highlight anything he considered relevant to his request for an extension of time. The applicant’s responses in this regard are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above (at [28]), the delays in this matter are 153 days in relation to the Non-Appearance Decision and 137 days in relation to the Confirmation Decision.
The delay here is significant and weighs against the granting of an extension of time.
Prejudice
It was conceded by the Minister’s representative (in written submissions filed in this Court on 23 February 2023) that the Minister does not face any significant prejudice, “beyond the public interest in the finality of administrative decision making”.
The Court agrees.
This weighs in favour of granting the extension of time.
Explanation
The longer the delay in question, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 (“Manna”) at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
In his affidavit (filed in support of his application for judicial review), the applicant claimed that he was delayed in seeking review in this Court because:
(a)he did not understand the Tribunal’s decision and he thought that there was an issue with his Tribunal review so he “made another application for review” to the Tribunal, but it was rejected; and
(b)he sought migration assistance but could not afford it. Further, he was only able to apply to the Court when he “found out about the free services through the National Union of Workers”.
In oral submissions to this Court the applicant explained that the system in Australia is very confusing and he did not understand what was required of him.
In relation to the applicant’s claim that he could not access legal advice, as outlined by this Court in BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”), there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099. Further, a lack of legal representation is not a sufficient explanation alone when requesting an extension of time: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [27], [32] & [36]; Manna at [17].
In relation to the applicant’s explanation that he did not file on time because he was confused by the Tribunal’s decision and the Australian legal system more broadly (and was thus unsure of what was required of him) the Court sympathises. Ignorance, however, is no excuse. In that regard, the Court notes the reasoning in in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, wherein the Federal Court explained:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant in this matter did not do that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of him.
The Court does not consider that the explanations provided by the applicant to be satisfactory.
This weighs against granting an extension of time.
Merits
The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on the substantive “grounds of review” (set out in the application for judicial review filed by the applicant in this Court) and to outline any other concerns that he might have in relation to the Tribunal’s decisions. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that he believed that the Tribunal did not take his application seriously and did not give it “proper attention”.
This issue will be considered below.
The Tribunal’s decisions
In order to determine whether the proposed application for judicial review has “merit”, it is useful to first set out the Tribunal’s decisions.
The Non-Appearance Decision
The Non-Appearance Decision dated 7 February 2018 provides (CB 83-84):
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal at 9:30 am on 7 February 2018. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing to the mobile phone number provided in the review application, 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that: the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that attempts were also made to send two separate SMS reminders to the review applicant about the hearing (‘delivery failed’ messages were received in relation to both SMS hearing reminder messages). No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision dated 23 February 2018 provides (CB 87-88):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 June 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 7 February 2018 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision on 8 February 2018 and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.4268(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5.The Tribunal confirms the decision to dismiss the application.
Proposed application for judicial review
The application for judicial review filed by the applicant on 14 August 2018 was prepared on his behalf by the National Union of Workers. However, the applicant was unrepresented before this Court. The application includes one particularised ground of review. By that ground, the applicant claims that the Tribunal acted unreasonably in exercising its power to dismiss the application review (which in turn affected its decision to confirm the dismissal of that review application). The particulars are not entirely clear but appear to set out the basis upon which the Tribunal’s actions are (in the applicant’s view) to be considered to be unreasonable.
Despite the Court’s best efforts, the applicant was unable to explain or expand on any of the items raised in the proposed ground of review or the accompanying particulars. As outlined above, the applicant simply stated that the Tribunal did not give his application “proper attention”.
The Court is mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing or, indeed, understand what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decisions and raise any concerns in that regard with the Minister. Further, in its duty to the applicant as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s decisions and, to the extent that those decisions reveal any material error, the Court will address that error accordingly: MZAIB.
On the basis of the above, the Court will consider the following issues:
(a)whether the applicant was properly invited to attend the Tribunal hearing;
(b)whether the Tribunal erred by failing to take into account the failed SMS hearing reminders;
(c)whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance; and
(d)whether the Tribunal erred by confirming the decision to dismiss the application.
Whether the applicant was properly invited to attend the Tribunal hearing
In the particulars of the applicant’s ground of review, there seems to be a suggestion that there were “defects in the manner [in which the Tribunal] notified the applicant of the [Tribunal] hearing”.
As outlined above, the applicant did not attend the Tribunal hearing which was scheduled to take place on 7 February 2018 (CB 78-80) and, as a result, the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Act (CB 83-84).
In the circumstances, the Court will consider whether the applicant was properly invited to appear before the Tribunal.
The Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act, which provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
On 18 December 2017, the Tribunal invited the applicant to attend a hearing before it, scheduled to take place on 7 February 2018 (CB 73-75). That invitation was sent to the applicant via email at the email address provided by the applicant in his review application (CB 73).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Here, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 74);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 7 February 2018 at 9.30am (VIC time) and providing the applicant with the address for the Tribunal’s Melbourne registry) (CB 74): s 425A(1) of the Act;
(c)was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s nominated email address on 18 December 2017 (CB 73): s 425A(2)(a) of the Act;
(d)was given to the applicant 51 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and
(e)contained a statement describing the effect of s 426A of the Act and explaining what would happen if the applicant did not attend the hearing (CB 75): s 425A(4) of the Act.
For completeness, the Court notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 18 December 2017), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicant in this matter was properly invited to attend the hearing.
No arguable case of error arises in this regard.
Whether the Tribunal erred by failing to take into account the failed SMS hearing reminders
The applicant also seems to claim that, in relation to the failed SMS hearing reminder messages which the Tribunal attempted to send to him, the Tribunal did not take into account that there “may have been defects in the manner in which it notified the applicant of the [Tribunal] hearing”.
As outlined above, the Court is satisfied that the applicant in this matter was properly notified of the Tribunal hearing by letter, which was sent to him via email on 18 December 2017.
As this Court recently explained in BHG22 (citing Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901 & citing Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268), where an invitation to attend a hearing has been sent and complies with the requirements set out in s 425A of the Act, there is no obligation on the Tribunal to consider other ways in which an applicant can be notified of the scheduled hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”) at [39]. This is further reinforced by amendments to the wording of s 425 of the Act, which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear: SZFHC at [41].
The applicant in this matter was properly invited to appear before the Tribunal. There was thus no obligation on the Tribunal to do anything further to notify the applicant of the Tribunal hearing.
The Court further notes that, while the Tribunal did attempt to send hearing reminder messages to the applicant (using the mobile phone number included by the applicant in his review application), there was no obligation on the Tribunal to do so.
Further, calling or sending an applicant an SMS message is not a valid method by which the Tribunal can give documents to a person pursuant to s 441A of the Act. Any attempt by the Tribunal to contact the applicant by telephone was simply an added courtesy extended to the applicant by the Tribunal and not a requirement.
The Tribunal was not required to consider other ways to contact the applicant (including by telephone) and no arguable case of error arises in this regard.
Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance
As outlined by this Court in BHG22 (citing ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744), before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it. Further, ss 425 and 425A of the Act are to be read together: SZFHC at [39]. That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
As set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
Because the applicant had been validly invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
The applicant did not appear at the hearing on 7 February 2018. He does not appear to dispute this. In fact, Exhibit 2 provided by the applicant contained a letter from the applicant in which he states (without alteration):
On the 7 February 2018, I was to attend the hearing at this building, Level 4, 15 William Street, Melbourne, Vic 3000, which I miss look my email as is my on fault and a email came on 8 February 2018 decided to dismiss my application for review.
In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s review application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
The Tribunal, in this matter, chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:
(a)the hearing invitation was sent to the applicant via email sent to his nominated email address and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email failure notice received) (CB 73);
(b)after lodging his application for review (on 8 July 2017), the applicant did not engage or make contact with the Tribunal (until after the Confirmation Decision had been made);
(c)no further material had been provided to the Tribunal by the applicant in support of his review application;
(d)the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30am (VIC time) on 7 February 2018 (CB 78-80); and
(e)the Tribunal waited until 10.30am to declare that the applicant was a “no show” for that hearing and more than six hours (until 3.46pm on 7 February 2018) before determining that the applicant was not going to appear and before the Tribunal member ultimately made the Non-Appearance Decision (CB 83).
The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal erred by confirming the decision to dismiss the application
Insofar as the applicant raises any concerns in relation to the Tribunal’s Confirmation Decision, the Court notes that applicant was notified (by email) of the Non-Appearance Decision on 8 February 2018 (CB 81-82).
The Court notes that, when the applicant was advised that his application had been dismissed, he was also advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 22 February 2018). Relevantly, the letter provided as follows (CB 82):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 22 February 2018. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
This letter complied with the requirements of s 426B(6) of the Act.
The applicant did not seek reinstatement or make any contact with the Tribunal prior to the Confirmation Decision being made.
Section 426A(1E) of the Act provides:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
In circumstances where no application for reinstatement was made by the applicant, the Tribunal was legislatively required to confirm the decision to dismiss the applicant’s application.
The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 23 February 2018 (CB 87-88).
No arguable case of error arises in relation to the Tribunal’s Confirmation Decision.
Oral submissions
It was is not entirely clear from the applicant’s oral submissions what the applicant means when he claims that the Tribunal did not give his matter or his application “proper attention”.
To the extent that the applicant is referencing the Tribunal’s decision to dismiss the applicant’s application when he failed to appear at the Tribunal hearing, for the reasons outlined above, the Court is satisfied that the applicant was validly invited to attend the Tribunal hearing and that the Tribunal acted reasonably when exercising its discretion to dismiss the applicant’s review application.
No arguable case of error arises in this regard.
Insofar as the applicant takes issue with the Tribunal not considering his review application, the Court notes that the Tribunal was not required to do so.
The applicant did not appear at the hearing on 7 February 2018.
In the circumstances, the Tribunal had two options available to it. As outlined above, the Tribunal could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s review application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
The Tribunal in this matter chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal was legislatively empowered to do so and, as outlined above, the Court is satisfied that the Tribunal exercised its discretionary power in that regard reasonably.
No arguable case of error arises in this regard.
Conclusion regarding merits of the substantive application
Assessed at a reasonably impressionistic level, the applicant’s “grounds of review” and oral evidence before the Court in this matter do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
The lengthy delay in filing, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 March 2023
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